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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Burdick or Carrington?: "Fencing Out" and the Voter ID Litigation

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September 12, 2006

Editor's Note: This week we are pleased to offer the views of a Guest Commentator in this column. The author is a professor of law at the University of California at Davis. The argument of this Weekly Comment is elaborated in an article he is currently drafting. He welcomes feedback by email at cselmendorf@ucdavis.edu.

"Voter identification" has become a central bone of contention for election reformers. Bills to impose new identification requirements on would-be voters have recently been enacted in Arizona, Georgia, Indiana, Missouri, and Ohio; related measures are pending elsewhere. Proponents insist these safeguards are needed to deter fraud and rebuild public confidence in voting systems. Critics say the new ID laws are thinly veiled attempts to reduce the number of votes cast by low-income, minority, and elderly voters, all major Democratic Party constituencies. So goes the debate in the political arena, at least.

When the battle shifts to the courts, the debate re-centers on the degree to which the challenged ID requirements burden the right to vote. Last summer, federal district courts pursuing this inquiry reached opposite conclusions about quite similar voter ID statutes in Georgia and Indiana. This Weekly Comment proposes that the courts might handle such cases more successfully with a doctrinal framework that more closely tracks the argumentation in the political arena. In these cases, the politics do belong in court.

Remembering Carrington

Overlooked so far in the legal tussle about whether the Georgia and Indiana ID provisions have the effect of "unduly burdening" the right to vote is an even more foundational precept: legislators may not enact voting regulations for the purpose of diminishing electoral participation by citizens possessed of views the lawmakers disfavor.

Back in 1965, when the Supreme Court's right-to-vote jurisprudence was still in its infancy, the Court held in Carrington v. Rash that "[f]encing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." And if it's unconstitutional for the state categorically to deny the franchise to a sector of the population because of its views, then purposefully hindering electoral participation by that sector should also be verboten. Yet Carrington received nary a mention in the Georgia and Indiana opinions, nor was the case cited in the plaintiffs' briefs.

Perhaps this should not come as a surprise, however, for Carrington occupies an odd position in the Supreme Court's pantheon of voting rights opinions. Carrington's "fencing out" language is regularly invoked to explain why heightened means-ends scrutiny of laws that substantially burden the right to vote is warranted. Because such laws may well have been enacted for an exclusionary purpose, the thinking goes, it is incumbent on the judiciary to establish whether they are reasonably well tailored and advance important state interests. But only rarely do judicial decisions actually turn on a finding that the challenged law was or was not enacted for the purpose of fencing out voters because of their political views.

As best I can tell, there is not a single appellate-court opinion that provides guidance on how to adjudicate claims that an election-administration statute is unconstitutional because intended to fence out. The voter ID litigation could and should occasion the development of a suitable framework.

On Scrutiny Levels and Threshold Findings: Implementing Carrington

Courts faced with new fencing-out claims would do well to heed a central lesson of the Supreme Court's undue-burden jurisprudence: that lines must be drawn, however imperfectly, between important and unimportant categories of voting rights cases, and heightened scrutiny reserved for the former. Thus, under Burdick v. Takushi, courts presented with an undue burden claim must first determine whether the challenged law significantly or minimally burdens voting rights. Substantially burdensome laws receive heightened scrutiny, whereas laws whose burden is slight will be sustained if supported by a conceivable rational basis. The Supreme Court explained that this bifurcated framework for judicial review was necessary because "[t]here must be substantial regulation of elections . . . if some sort of order, rather than chaos, is to accompany the democratic processes," notwithstanding that such electoral regulations "will invariably impose some burden upon voters."

Burdick was correct that if courts are not to usurp the whole of election law, heightened scrutiny must be reserved for a limited subset of cases somehow identified via threshold inquiries. Whether Burdick's burden threshold applies to Carrington-grounded claims of exclusionary intent is, however, an open question. Certainly it would be feasible to extend Burdick in this direction. Courts confronted with a Carrington claim would decline to inquire into non-admitted purposes (or, often equivalently, means-ends fit) absent a finding of significant burden. One who favored this approach could point to loosely supportive dicta from the Supreme Court. Yet for reasons I shall get to momentarily, I believe that Carrington merits a distinctive threshold inquiry of its own.

In lieu of the Burdick inquiry, courts adjudicating Carrington claims should choose scrutiny levels based on whether certain readily verifiable factors raise what I shall call a reasonable suspicion that the challenged law was enacted for fencing-out purposes. For example, this suspicion might be deemed to arise if (1) the voting restriction was enacted substantially along partisan lines; (2) there is some evidence that the law will disproportionately inconvenience citizens who are statistically more likely to support the opposition party; and (3) the law is a permanent measure, rather than a time-limited experiment with provisions for independent evaluation of its impacts on electoral participation by the ostensibly disadvantaged classes.

Like Burdick's step-one inquiry concerning the extent of burdens, this threshold probe for reasonable suspicion would determine whether the challenged statute will receive heightened scrutiny for means-ends fit. If the suspicion obtains, the law's defenders would have to establish that it is reasonably tailored to advance a substantial state interest. If the threshold inquiry comes out negative, the law would be sustained so long as there is a conceivable rational basis for it.

There are other ways of formulating a Carrington-specific test for separating important from unimportant voting rights claims, and it is not my purpose here to say just how the test ought to be cast. Instead, I'd like to briefly address why a Carrington companion to Burdick's burden inquiry is called for. The argument has two parts, one theoretical, the other decidedly pragmatic.

Why Not Stick with Burdick?

At the level of theory, a distinctive threshold test for fencing-out claims is warranted because courts that focus exclusively on the "size" of the burden are sure to miss a significant class of harmful laws. Constitutional law should be concerned not only with what putatively exclusionary voting legislation does, but also with what it communicates, what it leads citizens to believe about the integrity of the political process. Laws that reasonable onlookers regard as attempts to prevent disfavored political factions from registering their political preferences work a special harm to public confidence in government. Courts might perform a real service to democracy by striking down egregiously intended (even if rather ineffectual) exclusionary legislation and, perhaps as importantly, by legitimating contentious bills that some citizens otherwise would regard as mischievously intended.

The second rationale for a Carrington companion to Burdick is that sometimes it is impractical to establish the true magnitude of a statute's burden on the right to vote until well after the burden has been incurred — even if the burden is severe. Where this is so, reasonable suspicion (of fencing-out intent) could serve as a workable proxy for significant burden. After all, sophisticated politicians with devious intentions are not likely to fumble their choice of means.

The voter identification cases nicely illustrate the point. Professor Spencer Overton argues convincingly in a forthcoming article that the burden of a voter identification law should be understood not in terms of whether the ID requirement makes voting unreasonably difficult from the point of view of some hypothetical "average" citizen, but rather in terms of the law's impact on the ability of actual groups of like-minded citizens to register their collective voice at the ballot box. As the Supreme Court itself has said, laws that selectively reduce electoral participation by politically identifiable segments of the population should generally be deemed more burdensome, within the Burdick framework, than laws that reduce participation symmetrically.

Accepting this as a starting point, consider the challenge of figuring out whether the Georgia or Indiana photo-ID laws will substantially burden the right to vote. When these laws were enacted, neither state had records of the percentage of registered voters in politically salient demographic categories who possessed permissible forms of identification. But even if such records did exist, and even if they showed, as the plaintiffs hypothesized, that poor persons, the elderly, and African-Americans were systematically overrepresented among the ranks of the ID-less, that still wouldn't tell a great deal about the burden. As a legal matter, the magnitude of the burden is a function of whether group members disproportionately lacking in photo identification successfully adjust, in the aggregate, to the law's requirements, either by voting absentee (neither Georgia nor Indiana extended the photo-ID requirement to absentee voting), or by obtaining and bringing to the polls an authorized form of identification. Adaptation or its absence may not be discernable until a number of elections have been held under the new regime, and even then ascertaining the burden may depend on large, costly longitudinal surveys that track electoral participation rates and reasons among target and control groups.

In the Georgia litigation, the federal district judge justified heightened scrutiny by speculating (initially on the basis of a few dozen affidavits from registered voters) that "many" poor, elderly, and African-American voters would have difficulty voting under the new regime. In Indiana, the judge sneered at the plaintiffs' arguments from affidavits and "common sense," insisting on reliable quantitative evidence of the law's supposed deterrent effect on electoral participation by vulnerable groups. A more satisfactory answer might have been that while the ultimate burden of these laws remains unknown, they nonetheless warrant heightened scrutiny because the circumstances of their enactment raise a reasonable suspicion of fencing-out intent.